Although it provides a decent summary of the admirable process in which the Attorney General’s final regulations on the new Massachusetts Sick Time law were developed, the Boston Globe editorial linked here misleadingly simplifies the content of those regulations. https://www.bostonglobe.com/opinion/editorials/2015/06/23/paid-sick-leave-good-law-and-good-process/kq35QDG8ixIKMgCqIpyl9I/story.htmlFirst, although the editorial correctly points out the regs impose a “reasonable notice” requirement upon employees, it neglects to mention that there is no such requirement in an emergency situations, unless it is “reasonable” and “feasible” “under the circumstances” and that any notice requirement must also be in accordance with the employer’s policies and procedures. Further, the editorial cites what it calls the “bakery rule” requiring employee’s to take a full-shift’s worth of paid sick time in certain situations, but it omits to say that in such situations, employers must still provide job protected unpaid sick leave if the employee has already used up his paid sick leave. Additionally, the editorial implies that it’s just “seasonal workers” who have to provide “a doctor’s note” (i.e. written documentation from a health care provider) in order to legitimately take sick leave during the last two weeks of their employment when in fact the language of the regs seems to apply that requirement to full and part-time employees as well. The editorial goes on to refer to “per diem workers [who] will face a ’24-hour rule’” under the regs. In fact, there is no explicit reference to such a rule in the regs. Perhaps the editorial is referring to a provision that is much more vague – “An employee may not use earned sick time if the employee is not scheduled to be at work during the period of use.” Finally, the editorial mentions the “safe harbor” period, but does not warn employers who hope to rely on it that they will still have to change their policies by July 1 if, as is often the case, their existing PTOs do not provide benefits to part-time employees. So, what’s the bottom line? If you’re subject to the new Massachusetts Sick Time law – and most likely you are no matter what your size if you have any employee presence whatsoever in Massachusetts – don’t simply rely on what you’ve heard or read. Instead, if you want to be more certain about compliance, consult with an attorney, accountant or HR professional who as been carefully following and studying this far reaching new employee right that takes effect one week from now, on July 1, 2015.

On June 23, 2015, the Massachusetts Legislature’s Joint Committee on Labor and Workforce Development held hearings on a series of bills that would further restrict or even eliminate an employer’s ability to use and enforce non-competition clauses in employment contracts. Right now, the Massachusetts courts do allow non-competes that are reasonable in scope, duration and geographic area. See http://www.betaboston.com/news/2015/06/23/tech-sector-to-revive-noncompete-debate/

Small business owners and managers doing business in Massachusetts who value non-competition clauses as a way of protecting their business should pay close attention to the outcome of these hearings and any related further legislative developments. As of now, it is unclear what position Governor Charlie Baker will take on this issue. Given his priority of controlling state government expenditures, however, it is quite possible he could agree to non-competition restrictions or elimination as a means of negotiating budget cuts with the generally liberal legislature.

As promised and after extensive public hearings and comments, on June 19, 2015, Massachusetts Attorney General Maura Healey issued final regulations on the voter-approved new Sick Time law that take effects on July 1, 2015. Although the June 20, 2015 print article in The Boston Globe sported the headline “Wrinkles in sick-time law ironed out,” questions will still inevitably arise due to the far-reaching and complex nature of employee sick time rights and employer responsibilities under the new Sick Time law. Feel free to call me at 617-872-8648 if you have any of those questions. One area that has been “ironed out” is the viability of PTO (Paid Time Off) policies going forward in this new regulatory environment. Their status had been unclear under the text of the new law and under the AG’s initial draft regulations. Section 33.07 of the AG’s final regulations does explicitly allow “true” PTOs. "True” PTOs are benefit policies in which employees are granted paid time off that can be used interchangeably for one of several purposes - such as vacation time, sick time, and/or “personal” time – with any use of time meaning a deduction in the total paid time off available for the future. Employers with such policies can lawfully “substitute” them for earned sick time as long as their PTO provides at least the same amount of total time off with at least the same pay and job protection benefits as the new Sick Time law, as well as “clear” notice about the subtractive effect. With such a PTO, for example, a full-time employee who used up all of his PTO allotment of 40 hours on vacation time earlier during the calendar year would have no claim that he was still entitled to any additional paid sick time.

Last week, Massachusetts Attorney General Maura Healey announced a "safe harbor" deferral for certain employers facing the new Massachusetts Sick Time Law. The employers eligible for the deferral are those who already have a in place a PTO policy that provides for at least 30 hours of paid time off including sick time. Such employees may keep in place their current PTO policy and do not have to make any changes required under the new Law until January 1, 2016. All other employers must make the requisite changes mandated by the new Law PRONTO - they must be in effect in just a little over one month from now - by July 1, 2015.

Specifically, the AG's announcement said “For the period July 1 to Dec. 31, 2015, any employer with a paid time off policy in existence as of May 1, 2015, providing to employees the right to use at least 30 hours of paid time off during the calendar year 2015 shall be in compliance with the law with respect to those employees and to any other employees to whom the use of at least 30 hours of paid time off under the same conditions are extended. To remain in compliance, any paid time off, including sick time, used by an employee from July 1 to Dec. 31, 2015, must be job protected leave subject to the law’s non-retaliation and non-interference provisions. In all other respects, during this transition period, the employer may continue to administer paid time off under policies in place as of May 1, 2015. On or before Jan. 1, 2016, all employers operating under this safe harbor provision must adjust their paid time off policy to conform with the earned sick time law.”

If you have any questions about this safe harbor or any other aspects of the new Massachusetts Sick Time Law, please don't hesitate to call me at 617-872-8648.

The new Massachusetts Sick Time law will take effect in just two months, on July 1, 2015. Is your business, nonprofit or school ready?

If you are in need of further guidance, please consider coming to a free presentation for nonprofits that noted employment law attorney Jim Kobe and I are giving at the Boston Private Bank & Trust Company, 10 Post Office Square, Boston, MA in the Great Room on the 2nd Floor on Wednesday May 13, 2015 starting at 8:30 AM. Space is limited so it is necessary to RSVP at https://docs.google.com/forms/d/1kI1ytnHJGR-ZMj9wkIYbDgYUzK4foj-N5SdlsFHuNPk/viewform . You should also feel free to call me at 617-872-8648.Following up on an earlier blog posted on January 20, 2015 that summarized some key parts of the new Massachusetts Sick Time law as approved by voter referendum in the 2014 election, this blog will now highlight the proposed “Earned Sick Time” regulations released this week by the Massachusetts Attorney General’s Office. PLEASE NOTE THAT THE FOREGOING HIGHLIGHTS REFLECT THE PROPOSED REGULATIONS WHICH MAY BE DIFFERENT FROM THE FINAL REGULATIONS THAT WILL BE PROMULGATED AFTER THE ON-GOING REVIEW AND PUBLIC HEARING PROCESS. These highlights should also be read in conjunction with the summary provided in the earlier January 20th blog.HIGHLIGHTS OF PROPOSED ATTORNEY GENERAL REGULATIONS

1. Administrative Requirements Imposed on Employers

EMPLOYERS MUST HAVE A POLICY OR PROCEDURE IN PLACE ON HOW EMPLOYEES NOTIFY THEM OF ABSENCES OR LEAVES.

Employers must keep a “true and accurate record of the accrual and use of earned sick time.”

2. Which Employers Must Provide Paid Sick Time

An employer must provide a paid sick time benefit if it had 11 or more employees on the payroll for either (a) 20 or more total weeks over the current or preceding calendar year, or (b) for 16 consecutive weeks over the current or preceding calendar year.

All employees are included in the employer’s count, whether or not they work in Massachusetts or are eligible for the sick time benefit.

Employees include all full-time, part-time, temporary and seasonal employees as well as interns, as long as they receive compensation.

3. Which Employees Will Receive a Sick Time Benefit (Paid or Unpaid)

All full-time, part-time, temporary and seasonal employees as well as interns, as long as they receive compensation.

Employees need only have Massachusetts as their “primary” place of work to be eligible for the sick time benefit – this means a plurality of their work time is spent in Mass, not a majority (more time in Mass than anywhere else).

4. Determining the Amount of the Benefit

In determining an eligible employee’s sick time benefit, all of the employee’s hours count, even if not worked in Mass. (formula under the law is one hour of sick time earned for every 30 hours worked).

During the “transition year” i.e. 2015, employers who already provided paid sick time before July 1 need not provide another 40 hours but instead get credited for the paid time provided before July 1 and only have to provide a total of 40 hours for the entire year.

During the “transition year” i.e. 2015, employers who already provided unpaid sick time before July 1 and now must provide paid sick time do not have to pay for past sick time but must allow their employees to accrue and use up to 40 hours of paid sick time for the remainder of the year.

5. When an Employer Can Force an Employee to Take a Full Shift of Sick Time

Employers can require an employee to use up to a full shift – rather than one hour or less – of sick time if the nature of the employee’s work requires the employer to find a substitute to work the entire shift.

6. Payment in Lieu of Carrying Over Unused Sick Time

An employer has the option to offer employees a year-end payout in lieu of unused but earned sick time; however, if such a pa­­yout is made, the employer must start the employee with a credit of at least 16 hours of sick time at the beginning of the next year.

7. When an Employer Can Require Written Verification or Documentation

An employer may, as part of its notification policy or procedure, require employees to “submit written verification” that sick time has been properly used – but that cannot include medical or domestic abuse documentation unless the employee has used more than 24 consecutive hours of sick time.

If an employee does not have a health care provider and the employer requires written verification, the employee can simply sign a verification statement (the AG’s office has indicated it will prepare a model form for this purpose)

8. When an Employer Can Require Advance Notice from an Employee

An employer can require its employees to give up to 7 days notice before using sick time if the reason for the sick time is for a “pre-scheduled or foreseeable absence”; but again, this must be part of the employer’s notification policy or procedure.

9. Punishing an Employee for Misusing Sick Time

Employers “may discipline the employee for misuse of sick leave” – but it is unclear how far that discipline can go.

EFFECTIVE TOMORROW APRIL 7, 2015 - Massachusetts small businesses and nonprofits (including independent schools) will be explicitly mandated to provide the same leave benefits to fathers as they’re required to provide to mothers. (This summary is substantially the same as one originally posted earlier in this blog on February 4, 2015). BACKGROUND - The new law was signed on the last day of former Governor Patrick’s tenure in January of 2015. It revises the provisions of M.G.L. c. 149, §105D which had been in effect since 1972 and only explicitly mandated maternity leave, not paternity leave.

APPLICABILITY – The new Parental Leave law applies to all Massachusetts employers having six (6) or more employees, except for nonprofits that are organized as fraternal associations or social clubs. Unlike the new Massachusetts Sick Leave Law (see blog posting below), the new Parental Leave Law is unclear on whether temporary and part-time employees count when considering the number of employees. However, only full-time employees who have worked for three consecutive months, or employees who have completed a company-imposed probationary period, are entitled to the parental leave.

AMOUNT OF LEAVE – Each qualified employee must receive at least eight weeks leave for the purpose of “preparing for or participating in the birth or adoption of a child, and caring for a newborn or newly adopted child.” (quoted language from old MCAD guidelines). A “child” includes anyone under 18 being adopted or placed with a qualified employee (or under 23 if disabled). The eight weeks does not have to be paid leave unless the company has a policy providing for paid parental leave. Employers are also free to have policies giving employees more than eight weeks. If two parents work for the same employer, the employer can restrict their combined parental leave to eight weeks (or whatever greater amount is provided for in the employer’s policy).

ADVANCE NOTICE OF PARENTAL LEAVE – Employees seeking to use parental leave are required to give at least two (2) weeks’ notice prior to both the start and end of the intended parental leave, unless there are circumstances “beyond the [employee’s] control” in which case the notice must be “as soon as practicable.”

WORKPLACE NOTICE OF LAW – An employer subject to this law must post in the workplace a notice of the how it is meeting the law’s requirements.

CONSEQUENCES IF EMPLOYER VIOLATES LAW - An employee who believes his or her employer has not provided the mandated parental leave rights may bring a claim for discrimination to the Massachusetts Commission Against Discrimination (MCAD) under M.G.L. c. 151B and if successful, recover actual damages, punitive damages and attorney fees. The minimum obligation an employer has toward a qualified employee is to keep in place his or her job (or a substantially similar one) while the employee is out on parental leave. However, that obligation would be lifted if economic or other operating conditions necessitated a general layoff of similarly situated employees during the parental leave.

The MCAD will presumably issue updated regulations and guidelines on the new Parental Leave law to replace the now outdated ones that applied to “maternity leave.”

IMPACT - Prior to this law taking effect, male employees of larger Massachusetts employers (i.e. those having fifty or more employees) could have taken a paternity leave under the federal Family and Medical Leave Act of up to twelve (12) weeks. Additionally, some Massachusetts employers, in order to avoid potential discrimination claims, may already have policies in place stipulating that male employees are entitled to paternity benefits equal to the maternity benefits of female employees. It should be noted, however, that the new Massachusetts Parental Leave law clearly does change things for those small employers who did not previously provide for paternity benefits.THE FUTURE – There seems to be a nationwide movement, and Massachusetts seems to be on the leading edge of it, to expand parental leave benefits even further. According to the Boston Globe today, “a bill is working its way through the [Mass.] Legislature that would mandate up to 12 weeks of paid leave – based on a percentage of a worker’s income – to care for a new child . . . “ See http://www.bostonglobe.com/business/2015/03/26/microsoft-require-paid-time-off-for-big-suppliers/x52yAFjOODYQH15BYP3V4M/story.html

The Massachusetts Growth Capital Corporation, a state government supported lending agency that serves small businesses, just announced a "winter storms relief" program. The total amount available for lending in this program is one million dollars. Any small business that has lost working capital revenues due to the recent extreme winter weather can apply for a loan of from $5,000 up to $10,000. The loans carry interest at the rate of 5% annually, would have to be repaid in three years with the first installment due in six months, and have no penalty for early repayment. Application materials should be available later this week (March 3-7). If you have any questions or need assistance pursuing one of these loans, please don't hesitate to contact me at 617-872-8648.http://www.bostonherald.com/business/business_markets/2015/02/loan_fund_ok_d_for_small_biz_hurt_by_stormsAPPLICATION MATERIALS ARE NOW AVAILABLE at http://www.mcdfc.com/about/article/application-storm-loan-fund

What do you think of this bill sponsored by Rep. Livingstone before the state legislature that would require Massachusetts employers to: (1) refrain from finding out information about job candidates’ pay histories; (2) disclose the minimum pay for all advertised job openings; and (3) allow other employees to discuss their own pay levels? Would it promote greater wage equality for women as its supporters maintain, or be an unnecessary and intrusive burden on small business owners? http://www.bostonglobe.com/business/2015/02/22/bill-aims-close-gender-wage-gap/eAX5j5HxHZU9h14orWLXJJ/story.htmlIn any event, the issue of wage equality is currently garnering a high level of attention – witness Patricia Arquette’s Oscar acceptance speech – and this kind of legislation warrants attention from Massachusetts employers.